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01 March 2021
On February 3, 2021, Evermore, a Utah fantasy theme park, filed a lawsuit against Taylor Swift alleging trademark infringement over her album of the same name and related merchandise.
According to court documents, Evermore Park claims that the release of Swift’s Evermore caused “actual confusion,” affecting the park’s online presence negatively, along with infringing on its marketing and merchandise, and impacting its visitors. The suit claims that theme park visitors inquired staff members “whether the Evermore album was the result of collaboration between Evermore Park and Taylor Swift or some other type of relationship.”
It also alleges that both Evermore Park and Swift’s Evermore merchandise offer similar products and the court documents include photographs of Evermore Park’s merchandise. The plaintiff additionally claims Swift’s clothing merchandise is counterfeit via Evermore Park’s trademark.
In a letter filed in court responding to a cease-and-desist letter from Evermore Park, Swift’s legal team called the claims “baseless” and stated that Swift had not infringed on the trademark, adding that items that Evermore Park sells, such as small dragon eggs, guild patches, and small dragon mounts are not sold by Swift.
The suit seeks “not more than US$2 million per counterfeit mark” in connection with trademark infringement on clothing. It also seeks additional damages along with attorney fees and legal costs.
“They are asserting four trademark registrations. Of those, at least one looks like it could possibly have some merit, namely, Registration Number 5,597,168, which includes ‘entertainment services in the nature of live visual and audio performances by an actor’ in the description of goods and services. Evermore Park will have to present evidence of actual confusion, which is alleged in the complaint to include (1) inquiries from guests at Evermore Park regarding the Evermore Album, (2) substantial fluctuations in Evermore’s web traffic on the day the Evermore Album was released, and (3) explicit associations by social media users between Taylor Swift and Evermore,” says Christopher Rourk, a partner at Jackson Walker in Dallas. “However, what is unclear is whether this evidence shows actual confusion regarding the source of any ‘entertainment services in the nature of live visual and audio performances by an actor.’ By its own description of the goods and services that are covered by the mark, Evermore Park may have excluded any claim for damages based on sales of recorded music, although Evermore Park could argue that recorded music falls within the zone of natural expansion of the goods and services for the registered mark.”
“In contrast, Evermore Park is also asserting Registration Number 5,329,899, for ‘providing Halloween themed park services,’” Rourk says. “The facts alleged in the complaint do not seem to support a claim that Taylor Swift used the mark Evermore for providing Halloween themed park services.”
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